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Environmental Update

Date: December 31, 2014

Employers who are subject to the Occupational Safety and Health Act will soon have to contend with three new reporting and recordkeeping rules. As of January 1, 2015, final rule RIN 1218-AC50 will require employers to report incidents to the Occupational Safety and Health Administration (OSHA) that involve the hospitalization of one or more employees, amputations and the loss of an eye. Reporting is currently limited to employee fatalities and hospitalizations of three or more employees. The second rulemaking, proposed rule RIN 1218-AC49, would require certain employers to submit employee injury and illness data to OSHA. This data is typically not made available to OSHA under current requirements unless requested by the agency during an inspection or as part of OSHA’s Data Initiative. Lastly, another proposed rule, RIN 1218-AC84, would increase the period of time in which OSHA may cite an employer for failing to accurately record employee injuries and illnesses from six months to five years.

Reporting Changes Effective January 1, 2015

OSHA currently requires all employers, even those who are exempt from maintaining injury and illness records, to report work-related employee fatalities or the hospitalization of three or more employees from a single incident to OSHA within eight hours of the accident. Final rule RIN 1218-AC50, effective January 1, 2015, adds the obligation of reporting within 24 hours those accidents that result in an employee amputation or the loss of an eye. The rule also lowers the threshold for reporting employee hospitalizations from three employees to one, although the period of time an employer has to report a hospitalization has increased from eight hours to 24. OSHA’s justification for expanding the reporting requirements is that incidents that were previously unreported to the agency, like amputations and hospitalizations of fewer than three employees, are sentinel events that potentially evidence serious underlying health and safety concerns at a workplace for which agency intervention is warranted. OSHA hopes its investigations that are prompted by expanded reporting will help reduce the number of employee fatalities and catastrophes. OSHA anticipates these changes will result in 25,000 additional reports per year.

The final rule also changes how OSHA classifies “low-hazard” industries, in which employers are exempt from maintaining employee injury and illness records (OSHA forms 300, 300A and 301). Starting January 1, 2015, OSHA will use the North American Industry Classification System to classify low-hazard industries. The agency previously used the Standard Industrial Classification system. As a result of this switch, some previously exempt employers, such as automobile dealers and family services organizations, now will be required to maintain employee injury and illness records, whereas other industries will be reclassified as low-hazard, which will exempt employers in those industries from recordkeeping. Lists of exempt industries and those in which employers will be newly required to maintain records are available on OSHA’s website.

Proposed Recordkeeping Changes

Employers who are not classified as belonging to low-hazard industries are required to record employee injuries and illnesses; however, OSHA does not have access to this data under normal circumstances. Proposed rule RIN 1218-AC49 would change this by requiring certain employers to electronically report their employee injury and illness data to OSHA. The agency plans to make this information available to the public via a searchable database on its website, after removing information that could be used to identify employees. OSHA proposes to establish three categories of reporting employers under the rule:

Workplaces with 250 or more employees that are required to maintain employee injury and illness records would electronically submit their OSHA forms 300, 300A and 301 data on a quarterly basis;

Workplaces with 20 or more employees that are required to maintain employee injury and illness records and fall into industries that OSHA designates as having high rates of employee injury or illness would electronically submit their OSHA 300A summary form annually; and

Workplaces would be required to electronically submit specific employee injury and illness data that is requested by OSHA.

A concern raised by employers is that the rule change may increase the risk that private employee information will be inadvertently made public on OSHA’s website, despite the agency’s assurances that it will not disclose any private employee data it receives. Employers are also likely to see an increase in the number of citations that OSHA issues for recordkeeping violations if this rule change takes effect. OSHA has not published a proposed date to finalize this rule.

Lastly, proposed rule RIN 1218-AC84 would add language to the existing employee injury and illness recordkeeping rule (29 C.F.R. 1904) that employers must accurately record employee injuries and illnesses for up to five years after an incident. Consequently, employers who discover previously unknown employee injuries or illnesses within five years of the incident would be required to revise their records to include this information or face possible OSHA enforcement for recordkeeping violations.

OSHA’s proposed rulemaking is an attempt to circumvent the 2012 AKM LLC v. Secretary of Labor decision, wherein the D.C. Circuit Court of Appeals held that the statute of limitations for recordkeeping violations involving employee injuries and illness is six months from the date OSHA discovered or should have discovered a violation. Most violations of the Act and its regulations are subject to the same six-month statute of limitations period within which OSHA must cite an employer for a violation or waive its claim. OSHA unsuccessfully argued in the case for an expanded statute of limitations of five years for recordkeeping violations, which is also the period of time employers are required to maintain their employee injury and illness records. Critics of OSHA’s effort to change the recordkeeping statute of limitations via rulemaking believe that new legislation is required for the change to be effective. Despite this criticism, OSHA is moving ahead with the rule change, although it has not published a formal notice of proposed rulemaking.

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